S and Marper v UK [2008]

S. and Marper v the United Kingdom (Applications nos. 30562/04 and 30566/04)

Facts

The first applicant, Mr S., was arrested in January 2001 at the age of eleven and charged with attempted robbery. His fingerprints and DNA samples were taken but he was subsequently acquitted. The second applicant, Mr Marper, was arrested in March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. Before a pre-trial review took place, he and his partner had become reconciled thus the charge was not pressed and in June 2001 the case was formally discontinued. Both applicants asked for their fingerprints and DNA samples to be destroyed, but in both cases the police refused.

The applicants applied for judicial review of the police decisions not to destroy the fingerprints and samples. In March 2002 the Administrative Court rejected the application. In September 2002 the Court of Appeal upheld the decision of the Administrative Court by a majority of two to one and in 2004 the House of Lords dismissed an appeal by the applicants.

The applicants put in applications to the European Court of Human Rights. The applicants complained under Articles 8 and 14 that the authorities had continued to retain their fingerprints and cellular samples and DNA profiles after the criminal proceedings against them had ended with an acquittal or had been discontinued.

Held

In a unanimous judgment the Court found that the retention of the applicants’ fingerprints, cellular samples and DNA profiles was in violation of Article 8 of the European Convention on Human Rights – the right to respect for private and family life.

The Grand Chamber considered whether the retention by the authorities of the applicants’ fingerprints, DNA profiles and cellular samples constituted an interference in their private life under Article 8 and if so, whether the interference was: (a) in accordance with the law; (b) in pursuit of a legitimate aim; and (c) necessary in a democratic society. In doing so it considered the power to retain under amendments to s64 Police and Criminal Evidence Act 1984 and compared this to the approach in Scotland, Northern Ireland and other EU member States, as well as looking at the recent Nuffield Council on Bioethics report on the forensic use of bioinformation.

The Court considerd that, while it may be necessary to distinguish between the taking, use and storage of fingerprints, on the one hand, and samples and profiles, on the other, in determining the question of justification, the retention of fingerprints constituted an interference with the right to respect for private life.

In considering whether this interference was justified, the Court agreed with the UK Government that the retention of fingerprint and DNA information pursues the legitimate purpose of the detection and prevention of crime. However, the Court stressed that the question was not whether the retention of fingerprints, cellular samples and DNA profiles may in general be regarded as justified under the Convention, rather the only issue to be considered was whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was justified under Article 8, paragraph 2 of the Convention.

The Court was struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender. The retention is not time-limited and moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed.

The Court thus concluded that the nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, failed to strike a fair balance between the competing public and private interests and that the the UK had overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society.

In light of this conclusion the Court considered that it was not necessary to examine separately the applicants’ complaint under Article 14 of the Convention.


Read the full  ECHR Judgment.